Gauhati High Court
Jugal Borah & 6 Ors vs The State Of Assam And Ors on 5 June, 2012
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
W.P(C) No. 1024 of 2011
Petitioners :
1. Shri Jugal Borah, Member No. 1, Akara
Bosti Ward, son of late Babul Borah, village
Dirgha Baligaon, PO. Dirgha Majgaon, District
Lakhimpur, Assam.
2. Shri Bhugeswar Boro. Member. No. 2
Lilabasti Ward, son of late Deben Boro, Village
Lila Basti, P.O- Dirgha, District- Lakhimpur,
Assam.
3. Shri Piter Kerketta, Member, No. 7
Moridirgha Ward, Son of Markur Kerketta,
Village Moridirgha, P.O-Dirgha, District
Lakhimpur, Assam.
4. Shri Hari Narayan Baruah, Member No.
9 Rongpuria Ward, son of Dharmeswar Baruah,
Village Rongpuria Jaradhara, PO-Uttar Kolabali,
District- Lakhimpur, Assam.
5. Srimati Meena Dutta, Member, No. 4
Hindugaon Ward, wife of Sri Dimbesear Dutta,
Village Hindu Maj Gaon, P.O Dirgha Maj Gaon,
District Lakhimpur, Assam.
6. Srimati Kalpana Biswas, Member, No.
5 Gumandi Ward, wife of Sri Madhab Biwas,
Village Gumandi, P.O Birgha Maj Gaon, District-
Lakhimpur, Assam.
7. Shri Indra Bhajani, Member, No. 10
Jaladhara Ward, son of late Souram Bhajani,
Village Jurhatia Gohain Gaon, P.O- Kadam,
District-Lakhimpur, Assam.
By Advocates :
Mr. D.K. Saikia, Adv.
Mr. P.K. Das, Adv.
Ms. B. Kalita, Adv.
Respondents :
1. The State of Assam, Represented by the Commissioner & Secretary to the Govt. of Assam, Panchayat & Rural Development Department, Dispur, Guwahati-6.
2. The Commissioner, Panchayat and Rural Development, Assam Juripar, Panjabari, Guwahati.
W.P(C) No. 1024 of 2011 Page 1 of 9 2
3. The Deputy Commissioner, Lakhimpur, North Lakhimpur.
4. The Chief Executive Officer, Lakhimpur Zilla Parishad, P.O North Lakhimpur.
5. Smti. Jayanti Cheleng, Thou Thuwani Gaon Panchayat, Kadam, District. Lakhimpur, Assam.
6. The Secretary, Thou Thuwani Gaon Panchayat, Kadam, District Lakhimpur, Assam. By Advocates :
G.A, Assam.
Mr. Manish Choudhury,Adv.
Mr. Mridul Mahanta, Adv.
Mr. S. Borthakur, Adv.
Mr. U.K. Deka, Adv.
BEFORE THE HON'BLE MR. JUSTICE UJJAL BHUYAN.
Date of hearing : 22nd March, 2012.
Date of Judgment : 05-06-2012
J U D G M E N T AND O R D E R
By way of this writ petition, the petitioners seek direction to the Deputy Commissioner, Lakhi mpur and the Chief Executive Officer, Lakhimpur Zilla Parishad to accord approval to the resolution of no-confidence dated 27-12-2010 adopted against respondent No.5 and to remove the said respondent from the office of President of the Gaon Panchayat.
2. The case of the seven petitioners is that they are the elected members of Thou Thuwani Gaon Panchayat (Gaon Panchayat). Respondent No.5 is the President of the Gaon Panchayat and the petitioner No.1 is the Vice President. According to the petitioners, there are serious allegations of corruption and indulging in other illegal activities against the respondent No.5. W.P(C) No. 1024 of 2011 Page 2 of 9 3
Accordingly, the petitioners sent a written notice dated 10 -12-2010 to the Secretary of the Gaon Panchayat (received on 13 -12-2010) to convene a meeting of the Gaon Panchayat to discuss no - confidence motion against the respondent No.5.
3. Thereafter, the Secretary issued notice dated 20 -12- 2010 to all members of the Gaon Panchayat informing that a meeting would be held on 27 -12-2010 at 11AM in the office of the Gaon Panchayat to discuss the no -confidence motion against the respondent No.5. On 27-12-2010 when the petitioners went to the office of the Gaon Panchayat to attend the said meeting, they found the respondent No.5 present with clear int ent to preside over the meeting. When the petitioners raised objection, the respondent No.5 and two other members created an unruly situation which forced the petitioners to leave the meeting hall. The petitioners thereafter reassembled in a nearby venue a t around 12 noon of the same day (27 -12-2010) and held a meeting, which was presided over by the petitioner No.1 being the Vice - President. In the said meeting, all the seven petitioners were present and they adopted a resolution accepting the no -confidence motion against the respondent No.5 and further resolv ing to make the petitioner No.1 the President of the Gaon Panchayat. Thereafter, the petitioner No.1 vide letter dated 29 -12-2010 forwarded such resolution to the Secretary of the Gaon Panchayat with copies to the Deputy Commissioner, Chief Executive Officer of the Zilla Parishad etc. for necessary follow up action. But no steps W.P(C) No. 1024 of 2011 Page 3 of 9 4 were taken by the said authorities. Feeling aggrieved, the petitioners are before the Court.
4. The Secretary of the Gaon Panchayat, the respondent No.6, has filed his counter affidavit wherein he has stated that he had received the notice to convene a meeting of the Gaon Panchayat to discuss the no-confidence motion against the respondent No.5 on 23-12-2010. According to him, after taking the approval of the President, he called a special meeting of the Gaon Panchayat on 27-12-2010 at 11AM and accordingly, notices were issued to all the members. He has denied that the petitioners had come to the office of the Gaon Panchayat on 27-12-2010 to attend the meeting. According to him, the President, two other members and himself were present in the office of the Gaon Panchayat on 27-12-2010 and waited for an hour for the requisitionists to arrive. Since they did not come, those present could not hold the meeting for want of quorum. He has denied any knowledge about holding of the separate meeting by the petitioners on 27 -12-2010.
5. In their rejoinder affidavit, the petitioners have stated that when they themselves had brought no -confidence motion against the respondent No.5, the question of their remaining absent in such a meeting does not arise and the contention of the respondent No.6 in this regard is absurd, says the petitioners.
6. The respondent No.5, who is at the centre of the controversy, has also filed her counter affidavit. She has denied all the allegations of wrong doing brought against her. She has stated W.P(C) No. 1024 of 2011 Page 4 of 9 5 that the requisition of the petitioners to convene a special meeting of the Gaon Panchayat to discuss the no -confidence motion against her was not in accordance with the procedure prescribed under the Assam Panchayat Act, 1994 (the Act). But inspite of that, when the Secretary put up the file before her, she gave her approval to convene the meeting on 27 -12-2010. According to her, on 27-12- 2010, she had gone to the office of the Gaon Panchayat to attend to her duties. Two members of the Gaon Panchayat alongwith the Secretary and other staff were present for the meeting. At about 12:45PM, the Secretary and the two membe rs came to her office and informed her that the members who had requisitioned the meeting did not come. Thereafter, a resolution was passed by the members present that the meeting could not be held for want of quorum. She has denied that she came to the Ga on Panchayat office to preside over the meeting. According to her, the separate meeting held by the petitioners has no legal sanctity and no reliance can be placed on the same.
7. Learned counsel for the petitioners Mr. D. K.Saikia submits that the Gaon Panchayat comprises of ten members. Seven members i.e., the petitioners, have lost confidence in him. When seven out of ten members, which is more than two third of the total number of members of the Gaon Panchayat, have expressed no confidence against the respondent No.5, she cannot continue to hold her office which would not only be against the letter and spirit of the Act but against all democratic norms as well. W.P(C) No. 1024 of 2011 Page 5 of 9 6
8. On the other hand, learned counsels for the respondents 5 and 6 submit that there wa s no compliance with the procedural requirement. They further submit that when the petitioners, who were the requisitionists, themselves did not attend the special meeting convened by the Secretary to discuss the motion of no-confidence against the respond ent No.5, no further grievance can be made out by the petitioners for removal of the respondent No.5 as the President of the Gaon Panchayat.
9. The submissions of the learned counsels have been considered.
10. Section 6 of the Act provides that the G aon Panchayat shall consist of ten members, including the President, to be directly elected. Normally and as a general rule, procedure cannot override the substance. But in the case of removal of the President, he being directly elected as such, adherence to the prescribed procedure is insisted upon.
11. Section 15 of the Act deals with removal of the President. If a no-confidence motion against the President is passed by a majority of two third of the total number of members of the Gaon Panchayat, he shall be deemed to have vacated his office forthwith. As per Section 15(2) of the Act, requisition for such a meeting should be signed by not less than one third of the total number of members of the Gaon Panchayat and should be delivered to the President or the Vice President as the case may be with information to the Deputy Commissioner. Such a meeting W.P(C) No. 1024 of 2011 Page 6 of 9 7 shall be specially convened by the Secretary of the Gaon Panchayat with the approval of the President. If the motion is against the President, such meeting shall be presided by the Vice President. If such meeting is not held within fifteen days, a procedure is laid down for the Secretary to follow. Such meeting can be held by giving three days notice as per Section 17(3) of the Act. Under section 18(5) of the Act, where in a meeting a no - confidence motion is discussed, the matter should be decided by secret ballot.
12. In this case, it is seen that the seven petitioners who are members of the Gaon Panchayat, had submitted a requisition dated 10-12-2010 to the Deputy Commissioner with copies to various authorities including the Secretary of the Gaon Panchayat. Though the said requisition is not in conformity with the requirement of Sub-section (2) of Section 15, nevertheless, the Secretary took notice of it and after obtaining the approval of the President, convened a special meeting of the Gaon Panchayat on 27-12-2010 at 11AM in the office of the Secretary to discuss the no-confidence motion.
13. What happened thereafter on 27 -12-2010 is disputed by the parties. According to the petitioners, they had gone to attend the meeting but found the President present in the meeting venue ready to preside over the meeting. It is the further case of the petitioners that the President and he r two supporters created a ruckus because of which holding of meeting became impossible. They therefore left the meeting and held a separate meeting in a W.P(C) No. 1024 of 2011 Page 7 of 9 8 different venue wherein the seven of them adopted a resolution accepting the no confidence motion agai nst the petitioner and electing the petitioner No.1 as the President. As against this, the contesting respondents have stated that the petitioners did not turn up for the meeting on 27 -12-2010 and, therefore, because of lack of quorum, the meeting could not be held. However, they have also admitted about the presence of the respondent No.5 in the meeting venue.
14. It is highly improbable that the petitioners who had signed the requisition to hold a special meeting of the Gaon Panchayat to discuss no-confidence motion against the respondent No.5 would themselves remain absent from such a meeting unless a situation is so created. The Secretary ought to have ensured that the President was not present at the meeting venue as the no - confidence motion was directed against her. The presence of the President in the meeting venue on the date and time of the meeting can be said to have created a situation where holding of such meeting became impossible. On the other hand, holding of separate meeting by the petitioners adopting resolutions therein removing the respondent No.5 as the President of the Gaon Panchayat and electing the petitioner No.1 in his place has not been acknowledged by the Secretary, respondent No.6.
15. In a situation where seven out of ten mem bers of the Gaon Panchayat have expressed lack of confidence in the President, it would be against the provisions of the Act and democratic principles if the President is allowed to continue to hold W.P(C) No. 1024 of 2011 Page 8 of 9 9 her office without facing the no -confidence motion. In such circumstances, this Court is of the view that it would be in the interest of justice if a fresh meeting of the Gaon Panchayat is directed to be held to discuss and decide the no -confidence motion brought against the President, respondent No.5.
16. In view of above, the Deputy Commissioner, Lakhimpur is directed to convene a special meeting of the Gaon Panchayat either by himself or by an Officer deputed by him on or before 30 - 06-2012 to discuss and decide the motion of no -confidence brought against the President of the Gaon Panchayat. Such meeting shall be presided by the Deputy Commissioner himself or by the deputed officer. The Deputy Commissioner shall ensure that the meeting is held in a proper manner and shall also make necessary security arrangement. It is made clear that what over decision is arrived at in the said meeting, the same shall be given effect immediately as Section 15(1) of the Act does not provide for according of approval to resolution adopted in such meeting.
17. Writ petition stands allowed to the extent indicated above.
18. No cost.
JUDGE Ors./d.de .
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